S.D. Khare and J.M.L. Sinha, JJ. - (1.) THESE are two connected appeals, both directed against orders of acquittal in two cases Under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). The Nagar Swastha Adhikari, Nagar Mahapalika, Agra, is the Appellant in both the appeals.
(2.) THE facts leading to these two appeals are simple and might be briefly stated as follows: In Cr. Appeal No. 1527 of 1966 Raman Lal is the Respondent. On 9th October, 1964, the Food Inspector, Nagar Mahapalika, Agra, purchased a sample of 24 ounces of milk from the Respondent, divided the purchased milk in three equal shraes, put them in three separate phials, added 16 drops of formalin of 40 per cent strength in each such phial containing eight ounces of milk and sealed the same. One such phial was given to the Respondent and the remaining two phials were retained by the Food Inspector, one to be sent to the Public Analyst and the other to be kept in the office. The sample which was sent to the Public Analyst was examined by him on 21st November, 1964, (that is, one month and twelve days after the sample had been taken). The Public Analyst found 4.3 per cent fat and 7.6 per cent non -fatty solids in the sample and therefore, declared the sample to be adulterated. The prosecution was launched on 6th July, 1965, that is to say, more than seven months after the receipt of the report of the Public Analyst and the Respondent was summoned by the Magistrate for 15th November, 1965 and appeared before him on that date. There was no justification for the inordinate delay in launching the prosecution. In Cr. Appeal No. 390 of 1966 the Respondent is Mangalia. Milk was purchased from him by the Food Inspector on 13th August, 1963 and as required by the rules the necessary quantity of formalin (two drops per ounce) was added and the purchased milk was kept and sealed in three phials. One such phial was given to the Respondent and two were retained by the Food Inspector, one for the office use and the other for sending to the Public Analyst. The sample was examined by the Public Analyst on 20th September, 1963, who found that it contained 4.9 per cent fatty solids and 7.1 per cent non fatty solids and was, therefore, adulterated. The total of the two solids, as found by the Public Analyst, was 12 per cent. The prosecution was launched on (sic) August, 1964. The Respondent appeared before the Magistrate on 28th August, 1964 and at his request one phial of the sample was sent to the (hereinafter referred to as the Director) Director, Central Food Laboratory, Calcutta, who examined the same on 25th June, 1965. The Director reported that the sample contained 2.8 per cent fatty solids and 6.4 per cent non fatty solids. The total of the two solids as found by the Director was 9.2 per cent only. The Director, however, did not mention in his certificate that the sample received.....by him did not contain any, sign of deterioration and was capable of giving on - -examination results as satisfactory as was possible on the date when the sample was taken or when the sample was examined by the Public Analyst. Each of these criminal appeals was first listed before a learned single Judge of this Court. It was noticed that a Division Bench of this Court had in the case of Nagar Swastha Adhikari v. Ram Babu 1969 AWR 465 held that where a prosecution under the Act in respect of milk is launched after 308 days of the taking of the sample the accused is deprived of a valuable right conferred on him by Section 13(2) of the Act of getting the sample in his possession analysed by the Director and therefore, the delay is fatal to the prosecution. It was further held that such an assumption could be made even the accused did not make any application Under Section 13(2) of the Act for getting the sample analysed by the Director. The correctness of both these propositions of law enunciated in the case of Ram Babu (supra) has been doubted by the learned single Judge who first heard Cr. Appeal No. 1527 of 1966 and also by the Division Bench before which the appeal was listed thereafter. That is how Cr. Appeal No. 1527 of 1966 was referred to the Full Bench for disposal.
(3.) THOSE very points arose for consideration in Cr. Appeal No. 390 of 1966. The learned Judge (B.B. Misra, J.) who first heard the appeal doubted the correctness of the decision in the case of Nagar Swastha Adhikari v. Ram Babu (supra). It was contended before him that the provisions of the proviso to Sub -section (5) of Section 13 of the Act could not be disregarded because they were provisions of a special law and overrode the provisions of the general law contained in the Indian Evidence Act. He, therefore, referred that point for decision by a larger Bench, which, in its turn, has referred the same point for decision to this Full Bench.;